Last month, Texas executed a man using a lethal injection drug whose source was not disclosed. A federal appeals court rebuffed arguments that, without knowledge about the source of the drug, the inmate could verify whether it will lead to a cruel and unusual execution that violates the Constitution. But that was before execution using another drug from an unknown source was botched two weeks ago, leaving the inmate to slowly suffocate for 43 minutes in what many viewed as state-sanctioned torture.
Even as the nation is still reeling from that Oklahoma execution, Texas plans to kill another man tonight. Robert James Campbell is slated to be executed at 6 p.m. with an injection of pentobarbital obtained by what is known as a compounding pharmacy. This is a pharmacy not regulated by the Food and Drug Administration, and the state is not required to reveal the identity of this pharmacy, even under seal to the court.
Campbell will not be executed Tuesday night. A federal appeals court issued an eleventh-hour order blocking the execution, finding that Campbell presented significant evidence that he is intellectually disabled.
James Robert Campbell’s lawyers and even the lower court judge, Keith P. Ellison, urged the federal court to reconsider its position on undisclosed drug sources, in light of the recent Oklahoma example. But lamenting that his hands were tied, Ellison wrote, “The horrific narrative of Oklahoma’s botched execution of Clayton Lockett on April 29, 2014 requires sober reflection on the manner in which this nation administers the ultimate punishment. While the law currently does not permit injunctive relief, this Court urges the Fifth Circuit to reconsider its jurisprudence that seems to shield crucial elements of the execution process from open inquiry.” Three judges on the U.S. Court of Appeals for the Fifth Circuit took up Campbell’s appeal, and ruled once again yesterday that killing Campbell with drugs from an unknown source was just fine.
As the New York Times reports, Texas, which performs 40 percent of U.S. executions, has had many opportunities to perfect its procedure and protocol. Even law professor and frequent death row appellate attorney David R. Dow said, “I think Texas probably does it as well as Iran.” Texas has performed other executions using drugs from compounding pharmacies, but it remains a relatively new phenomenon and subject to particular unpredictability.
As even Oklahoma committed not to perform another execution for six months, Texas is now distancing itself from Oklahoma’s methods. Attorney General Greg Abbott said after the Oklahoma incident that Texas’ execution protocol is “vastly different” from Oklahoma’s. But not too long ago, Texas officials sought help from Oklahoma in defending secret compounding pharmacy lethal injections in court. In an email exchange on the subject, Oklahoma officials joked about the matter, saying they would help them out exchange for coveted football tickets and a “commemorative plaque at halftime recognizing Oklahoma’s on-going contributions to propping up the Texas system of capital punishment.”
And secrecy is not the only factor in Campbell’s execution. Campbell has also presented significant evidence that he has an intellectual disability — making death an “unsuitable punishment” per a 2002 U.S. Supreme Court decision. Campbell is arguing that the state Department of Criminal Justice never disclosed two IQ tests that provide strong evidence Campbell is intellectually disabled. But because Texas and other states have seized on a loophole in the Supreme Court’s ruling to allow the execution of inmates with low IQs, the state court has rejected Campbell’s arguments of intellectual disability. Four of the justices in that ruling dissented, writing, “Applicant has now presented compelling evidence to show that he is ineligible for execution under Atkins v. Virginia,” and Campbell’s lawyers are arguing with the support of disability advocacy groups that the Texas Board of Pardons and Paroles should block Campbell’s execution on the basis of new undisclosed evidence of his intellectual disability.
Both of these factors have contributed to evidence that the U.S. imposition of the death penalty is increasingly cruel. And the disproportionate use of the punishment in particular states and counties adds to evidence that it is increasingly unusual under the Eighth Amendment ban on “cruel and unusual punishment.” A Death Penalty Information Center study found that just 2 percent of counties are responsible for the majority of U.S. executions.
But there is little reason to think Texas will buckle under public pressure. Campbell is scheduled to be executed in what the New York Times dubbed “the nation’s busiest execution chamber.”